Brewer v. Com.

• Court: Supreme Court of Kentucky
• Citation: Brewer v. Com., 206 S.W.3d 343 (Ky. 2006)
• Decision Date: 22 November 2006
• Docket Number: No. 2004-SC-001105-TG.,No. 2004-SC-000742-MR.
• Parties: Lee Roy BREWER Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

Page 343

206 S.W.3d 343

Lee Roy BREWER Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2004-SC-000742-MR.

No. 2004-SC-001105-TG.

Supreme Court of Kentucky.

November 22, 2006.

COPYRIGHT MATERIAL OMITTED

Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Kenneth W. Riggs, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Counsel for Appellee.

MEMORANDUM OPINION OF THE COURT

Appellant, Lee Roy Brewer, was convicted by the Owen Circuit Court of one count of engaging in organized crime, Kentucky Revised Statutes (KRS) 506.120; four counts of trafficking in five or more pounds of marijuana, KRS 218A.1421(4); and four counts of trafficking in eight or more ounces but less than five pounds of marijuana, KRS 218A.1421(3).¹ Appellant was sentenced to a total term of imprisonment of sixty years and now appeals his conviction and sentence as a matter of right pursuant to Ky. Const. § 110(2)(b), alleging that: (1) the trial court erroneously ordered forfeiture of firearms that belonged to the Appellant; (2) his due process rights were violated when the Commonwealth urged the jury in the sentencing phase to impose a harsh sentence for the sake of the community; and (3) the prosecutor improperly used "investigative hearsay" to prove Appellant's alleged involvement in the marijuana trafficking operation. We affirm Appellant's conviction and sentence but reverse the improper forfeiture of his firearms.

I. FACTS.

On April 24, 2004, acting on information received during an unrelated situation, the police visited the home of Scott and Beverly Sizemore. The police immediately recognized the strong odor of marijuana emanating from within the Sizemores' home. Despite this, Scott Sizemore invited the police inside where, after obtaining his consent to search, they discovered several bags of marijuana. Sizemore also told the police that Appellant, Appellant's wife (Rosalee),² Jacqueline Sims, and Dale Masden were involved in a scheme to smuggle marijuana from Mexico. Sizemore also informed the police that Masden might have recently returned home from Mexico with a large shipment of marijuana.

When police later arrived at Masden's home, Sims, who was dating Masden, allowed them inside and gave them permission to search the residence. That search yielded several bags of marijuana and numerous marijuana plants. Sims cooperated with the police and told them that she and Masden kept quantities of marijuana for Appellant, who distributed and sold it.

Sims also agreed to wear a wire during a visit to Appellant's home. On April 25, 2004, Sims went to Appellant's home and disclosed that Beverly and Scott Sizemore had been arrested. Appellant and Rosalee suggested that Sims should get rid of the marijuana she had in her home. Sims did not disclose that police had already confiscated the marijuana in her home but did tell them the police had confiscated the plants and her own personal supply of marijuana. Appellant then gave Sims an ammunition box in which to bury the marijuana.

The police then arrested Appellant and his wife, Rosalee. After obtaining a search warrant for the Brewers' property and conducting an initial search, police found no marijuana or any evidence of alleged drug trafficking; although the police did seize Appellant's firearms. However, a subsequent search of Appellant's property (and the area adjacent thereto) yielded $8,100 in cash, as well as some marijuana.

Scott Sizemore; Sims; Masden; and another suspect, Deborah Gibbs, all entered into plea agreements whereby they agreed to testify against Appellant and Rosalee. That testimony revealed an elaborate marijuana trafficking operation in which Masden drove to Texas to meet Gibbs and another person identified as "Terry," whereupon they would drive to Mexico to pick up the load of marijuana. The marijuana would then be placed in the gas tank of an Oldsmobile that had been modified so that the tank would hold at least four gallons of gas but keep the marijuana protected. Once the tank was filled with fifty to sixty pounds of marijuana, Gibbs would then drive through a Mexican checkpoint, with the assistance of a member of the Mexican Army. Eventually, Gibbs or Masden would then drive to Monterey, Kentucky, where the marijuana would be removed, weighed, and stored in a freezer in Masden's trailer.

According to testimony, the financiers of the operation were Appellant and Rosalee. Masden, who did not directly sell the marijuana, would receive a flat $5,000 fee from Appellant for bringing the marijuana from Mexico to Owen County, Kentucky. Although Appellant and Rosalee did not directly sell the marijuana either, they apparently acted as wholesalers who "fronted" the marijuana to street-level dealers on credit. According to Sizemore, he and Beverly made about $200-$400 per pound of marijuana they sold for Appellant, with most of those sales occurring at their residence.

Appellant eventually was convicted of one count of engaging in organized crime, four counts of trafficking in marijuana (five or more pounds), and four counts of trafficking in marijuana (over eight ounces) and was sentenced to serve sixty years in prison. He now appeals his conviction and sentence, as well as the trial court's order of forfeiture.³

II. ANALYSIS.

A. Forfeiture of Appellant's firearms.

In his first assignment of error, Appellant alleges that the trial court's order of forfeiture of firearms seized from his home was improper and requires reversal. We agree.

During the initial search of Appellant's home, no evidence of marijuana trafficking was found; however, the police seized numerous firearms. The Commonwealth subsequently filed a notice of forfeiture stating that it intended to bring a forfeiture action against certain real and personal property belonging to Appellant. In response, Appellant sought to have the previously seized firearms returned to family members. The Commonwealth filed a response indicating that it intended to seek forfeiture of the firearms, pursuant to KRS 218A.410(1)(f), (h), and (j).

On September 28, 2004, the trial court held an ancillary hearing on the forfeiture issue, pursuant to KRS 218A.460, following Appellant's conviction. Detective Derek Boyd testified on behalf of the Commonwealth that in his "experience as a narcotics officer ... guns are often found and accompany ... drug trafficking." However, Boyd also testified that there was no evidence linking any of the firearms found at Appellant's home to narcotics.

Although the Commonwealth sought forfeiture of Appellant's firearms, pursuant to KRS 218A.410(1)(f), (h), and (j), we note the only portion of that statute to be applicable to firearms, i.e., equipment or personal property, are subsections (f) and (j). These subsections provide, in pertinent part, that the following are subject to forfeiture:

(f) All ... equipment of any kind which [is] used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter.

....

(j) Everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of this chapter, all proceeds, including ... personal property, traceable to the exchange .... It shall be a rebuttable presumption that all moneys, coin, and currency found in close proximity to controlled substances, to drug manufacturing or distributing paraphernalia, or to records of the importation, manufacture, or distribution of controlled substances, are presumed to be forfeitable under this paragraph. The burden of proof shall be upon claimants of personal property to rebut this presumption by clear and convincing evidence ....

(Emphasis added).

Although this Court has addressed the issue of forfeiture of currency in the context of drug trafficking in Osborne v. Commonwealth,⁴ we have not yet addressed the forfeiture provisions of KRS 218A.410 as they apply to firearms. We note that while firearms are not specifically mentioned in the statute, they are "personal property" and, thus, are subject to forfeiture. Moreover, the statute provides that personal property is merely subject to forfeiture, meaning that the Commonwealth's argument in favor of automatic forfeiture cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law.⁵

Having rejected the Commonwealth's mandatory forfeiture argument, we now turn to Appellant's argument that the trial court erred by forfeiting his firearms without requiring the Commonwealth to link those firearms to narcotics trafficking. The Commonwealth, unsurprisingly, contends that no such linkage or nexus is required.

In support of its contention that no such nexus is required, the Commonwealth relies upon KRS 218A.460(4), which provides, in pertinent part, that "[u]nless otherwise expressly provided in KRS 218A.410, the burden shall be upon claimant to property to prove by [a] preponderance of the evidence that it is not subject to forfeiture." Essentially, the Commonwealth would have this Court approve a method by which a defendant who legally owns firearms and who is convicted of violating one of the provisions of KRS 218A must forfeit those firearms without any evidence linking the firearms to the KRS 218A offense. This is an untenable proposition and is unsupported by the requirement under KRS 218A.410(1)(j) that the property subject to forfeiture must be "traceable to the [narcotics] exchange[.]" As we succinctly stated in Osborne, "it is apparent that any property subject to forfeiture under [KRS 218A.410](j) must be traceable to the exchange or intended violation."⁶

Despite the Commonwealth's arguments to the contrary, we find the language and rationale of Osborne applicable to the...